Friday, March 28, 2008

"So now you'd give the devil the benefit of law!"

Do an internet search for the play A Man for all Seasons and 'free speech,' and you will get over forty thousand results. Robert Bolt's work rings so true for defenders of speech rights because of its passionate defence of individual conscience against the powers of state coercion.The exchange that is most often referenced is the one that begins with the quotation above. Thomas More is in the middle of an argument with William Roper about the importance of the rule of law. Asked if he would give the devil that benefit, More responds, "Yes. What would you do, cut a great road through law to get after the devil?" And Roper responds, "I'd cut down every law in England to do that!"

For over twenty years in this country, we have been using restrictions on free speech to cut an ever-widening road through law to get at the devils of racism. If you know the rest of the exchange from the play, you will know what comes next. But let us leave that aside for a moment, and talk about Aryeh Neier. Neier was born in Berlin in 1937 to a Jewish family. His parents managed to get out at the last possible moment before the persecution of Jews turned into real genocide. He lost many family members to the holocaust, and would later come to know survivors of the concentration camps. This is a man who understands what can happen when a society rallies to prejudice and anti-semitism, and knows what is possible when people begin to dehumanize people with hate speech.

Yet, when Neier got a law degree and started work for the American Civil Liberties Union, he became famous (and extremely controversial) for defending the free speech rights of the American Nazi party in several high-profile cases. How could Neier justify doing this, knowing that the Nazis wanted nothing more than to see him and his people wiped off the face of the earth? The answer, as detailed in Neier's book, Defending my Enemy, is power. He explains that power is the opposite of freedom, the alternative to an open society. Given enough power, he says, the state might be able to harass, frustrate and prosecute American Nazis so as to silence them completely, denying them a voice in the national conversation. But he could never be sure that once given the power to silence groups, the state would not turn that power on the Jewish community someday, silencing it in just the same way.

Those for hate-speech laws and censorship argue that these tools are necessary to protect the most vulnerable groups in society from hate-motivated violence. But according to Neier's argument, it is precisely because these groups are at risk that they need access to the full benefits of freedom of speech, and must correspondingly defend those rights for others with a special passion. "Because we Jews are uniquely vulnerable," he writes, "I believe we can win only brief respite from persecution in a society in which encounters are settled by power." It is a good principle to remember for anyone who would have the state overstep its legal powers for some reason generally thought to be in service of the greater good: If you would give the state extraordinary and extra-legal powers to get after your enemy more effectively, can you be sure that sometime in future those powers will not be turned against you, either by the state or by your erstwhile prey? "If I am in danger," writes Neier, "I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies... I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened."

For a long time, arguments like this have gotten short shrift in this country, with its weaker constitutional guarantees for free speech. Our hate speech laws have mostly been used against the types of people Neier would defend - Neo-Nazis and the like. Do Neier's warnings have any relevance to today's Canada? Might Canadian Jews see their free speech rights violated using the very legal precedents many of them have cheered? Well, consider the case of Ezra Levant and the complaint against him at the Alberta Human Rights Tribunal. Mr. Levant is Jewish, and he does see his community as under threat. One of the major themes of his political writing is the danger posed to liberal values and tolerance by some radical elements of the Muslim community. Part of his oeuvre includes the now-defunct Western Standard magazine where he republished the infamous Danish caricatures of the prophet Muhammad. Mr. Levant, incidentally, was never for censorship, and never supported the use of hate speech laws. He ran the cartoons partly for their news value, and partly (I have no doubt) to make a statement in favour of the free exchange of ideas. Now he has been caught in the trap used so often before to get Neo-Nazis and other haters, and has spent over one hundred thousand dollars in legal fees which he will never recover even if he wins his case.

I realize that Mr. Levant very probably does not speak for the majority of the Jewish community when he says that radical Islam is a bigger threat to racial harmony in Canada than white nationalism. Many Canadian Jews agree with nary a word the man says, and I daresay a few consider him too loud, too aggressive, and wish that he would soften his rhetoric or just shut his mouth. Even among those who are willing to concede the proposition that some fringe elements of the Muslim community might pose a danger in certain ways, many disapprove of the provocative manner in which he communicates his message. My purpose here is not to endorse Mr. Levant's views or denounce them, but merely to make the point that here we have a member of the Jewish community who perceives a threat to himself and his people, and yet is being prosecuted under laws that are ostensibly meant to protect people like him (meaning, people from traditionally vulnerable groups). Furthermore, while he may be in the minority politically, I can think of a few Jewish writers who both agree that there is a threat from one particular corner and want to sound the alarm along with him. Should they be silenced, just because not all in their community agree with them? And are we certain that, if we allow for censorship now, it will be possible to raise the alarm at some future date if need be? Note that this is not to suggest that only Jews are deserving of protection; one can easily imagine a gay man like Michael Lucas or Bruce Bawer, or a woman like Ayaan Hirsi Ali running afoul of our laws by saying many of the same things as Levant.

It must be said that major Jewish organizations like the Canadian Jewish Congress and B'nai Brith do not support the complaint against Mr. Levant. However, the CJC denounces only this specific application of the hate speech legislation, arguing at the same time that such laws are still necessary. The CJC supports some instances of censorship - the cases it has brought to the federal Commission itself, for example - but thinks the Levant case is an overreaction. David Matas, senior counsel for B'nai Brith, has argued for even stricter hate speech laws, and would like to see more zealous application of what we already have on the books. These groups may support Mr. Levant in some minimal sense, but by backing this legislation they are behind a system that has allowed for him to be brought before a tribunal on what any reasonable person must conclude are completely frivolous grounds, and to have his time and his savings eaten away in a process that could take years to resolve itself.

But let us leave aside the case against Mr. Levant for one moment. Let us assume that he is wrong in his world view, and start from the proposition that the Neo-Nazi movement is the most serious threat to Canada at the moment and we need hate speech laws to combat it. When Thomas More's friend pledges he would cut down every law to get at the devil, More then responds, "Oh? And when the last law was down and the devil turned around on you - where would you hide, Roper, the laws all being flat?... D'you really think you could stand upright in the wind that would blow then? Yes, I'd give the devil benefit of law for my own safety's sake." Now, free speech absolutists love to quote this passage. But is this the point in the dialogue where the argument becomes merely rhetorical? Those who support censorship will say that these laws are exactly what we need to ensure the devil will never be able to turn around on us. As long as we are vigilant, and keep after him day and night, we will keep the devil at bay. If we use these hate speech laws to keep them disorganized and their organizations remain small in scale, the Nazis will never be able to gain the kind of power they have in times past.

In any case, they say, if all our efforts should fail, and the Nazis gain power, and this country sinks into "the abyss of a new dark age" as Churchill said, our laws will not be used against us. They will simply be disregarded or thrown out en masse, the constitution torn up, all rights suspended, just as you would expect. There are no absolutes in life, and we cannot be one- hundred-percent sure that the fascists will never rise again. But by pursuing this course of censorship, we are engaging in what we honestly believe is the best strategy to guard against such an eventuality. It is silly to suggest, though, that if the Nazis ever are elected democratically - as Hitler was, let us not forget - they will use these hate speech laws against the citizenry. If such a terrible thing as a fascist takeover were ever to come to pass, hate speech laws would be the least of our worries. To answer More's question to Roper, if the devil is ever in a position to turn around on me, I will not be able to take refuge in even the most liberal and inviolate constitution. At that point the game will be lost, and there will be nothing in the lawbooks that can protect any of us. Best to keep the devil on the run, while making sure that the path we cut through law is as narrow as possible.

When a group of white supremacists marched in Calgary last weekend, censorship supporters took it as proof of the continued need for hate speech laws. Warren Kinsella predicted we will see more of the same types of demonstrations in coming years, writing, "As Western economies continue to slide, we will be seeing more and more of these expressions of hatred...It is what has happened throughout history, over and over." As the economic picture gets more bleak, Kinsella says, hate speech laws will become ever more necessary to guard against the rise of fascism, which has always thrived in climates of poverty, despair, humiliation, and bitterness. The kind of free speech advocated by writers such as Mark Steyn, Jonathan Kay and Ezra Levant is a grave danger, because "Neo-Nazi rallies in broad daylight are its inevitable consequence."[emphasis in the original] Leave aside the fact that somehow Kinsella seems oblivious to the fact that Canada has been enforcing hate speech laws at both the provincial and federal levels (and in the case of the federal, with a flawless success rate) for years; by his logic, it is this system, if anything, of which Nazis rallies are an "inevitable consequence." If his words are to have any meaning at all, we must conclude he is suggesting that these rallies would be more frequent and better attended if not for our censorship practices. He may even be suggesting that we should become more zealous in our prosecutions and draft stricter laws.

It is worth considering what would happen if Kinsella's predictions are accurate. What if this economic downturn in which we presently find ourselves were to turn into a protracted worldwide depression, with catastrophic unemployment rates and corresponding social upheaval? As he suggests, it is probably unavoidable that Neo-Nazi organizations would try to capitalize on the populace's misery and fear, and it is also unavoidable that many would want to join up. It this happens, he argues, then we would need our Human Rights Commissions more than ever, to obstruct the fascists in their quest to disseminate hate literature over the internet, to stop them spreading their message using flyers, or posters, or the telephone. It would be necessary, nay, crucial, to take away the platforms used to spread hate. There would be no Nazi rallies allowed in the streets, no party members would be allowed on radio or television, and we would certainly keep their recruiters out of our universities and away from the unemployment lines.

But would our censorship tools be enough to cope with the problem? Consider that before the Great Depression hit Germany, the Nazi party was still relatively small, having only pulled in 2.6% of the vote in 1928 elections. Then, when the depression hit and unemployment shot up, membership suddenly exploded. The party's popularity skyrocketed, and within a couple of years the Nazis were the second largest party in the Reichstag. In a space of about two years, then, the fascists went from just another fringe party to a major force in German politics.

Bearing that in mind, consider how long it takes to carry out a successful s. 13 complaint in the federal system. In Citron v. Zundel, to take just one example, the complaint was brought to the Commission in July 1996 with regard to communications that began in October 1995. After the preliminary investigation, referral to the Tribunal, first hearing, numerous applications for intervener status, six witnesses for the Commission, eight witnesses for the Respondent, several applications to the Federal Court Trial Division including a formal constitutional challenge, one appeal to the Federal Court of Appeal, written submissions, oral arguments for both sides, all adding up to a total of 55 days of hearing including eight motions for stays and adjournments, the complainants finally succeeded in obtaining a cease and desist order against Zundel to stop him denying the holocaust in January 2002. This was five and a half years after the complaint was brought, and over six years after the discriminatory publications started appearing.

Now, it may be unfair to single out the Zundel case as representative of the speed with which these complaints typically get handled. Let us take one of the more recent cases, since a lot of the bugs in the system must have been ironed out by now. Look at Warman v. Winnicki, for example, where only a little over three years elapsed from the filing of the complaint to the Tribunal's cease and desist order. In Warman v. Wilkinson, the Respondents did not even bother to show up, which should have expedited matters. That case only took four years from the first appearance of discriminatory writing to decision. In Warman v. Lemire, the complaint was laid in November 2003, and hearings are still ongoing. The point is that Canadian justice is a slow process, even at the best of times. The Tribunal cannot issue injunctions until the hearing has been completed, meaning that the respondent is theoretically free to continue propagandizing until that time (although that would probably only lead to an amended complaint, and therefore a stronger decision against him in the end). If we were to face a tidal wave from the fascist ranks comparable to what Germany saw in the years after the Depression, would our Commissions be able make any headway at all, given the painfully slow turn of justice's wheels?

Reasonably, then, one has to expect to wait at least three or four years before the Tribunal can make any meaningful order. And this does not even take into account the possibility that such prosecutions might even help the cause of those on trial, by giving them publicity and lending credence to what they say. Remember the words of Madam Justice McLachlin in R. v. Keegstra, warning that suppressing conspiracy theories can actually make such theories more appealing. One would have to hope that prosecuting these fascists during a time of depression and social chaos would not result in a repetition of what happened with Nazi Julius Streicher, for example, who was convicted of libeling the Jewish religion in 1929. Streicher and an accomplice were leaving the courthouse when "they were greeted by a great throng of tearful sympathizers shouting 'Heil,' and singing racist songs so passionately that observers could only wonder whether the trial had not won new converts to the Nazi cause." Trying to suppress something as vital as free speech can have unintended consequences, it seems.

So what if, despite our best efforts, the fascists go from the twenty five who marched in Calgary last week to twenty-five thousand in every city, and have the numbers and the confidence to start staging unsanctioned demonstrations, torching government buildings, and running intimidation campaigns against certain politicians and writers? And then suppose that, all of a sudden, the quotations from J.S. Mill disappear from their websites, and they decide they are not for unrestricted free speech after all. Suppose that, like the low, slithering things they are, they prove themselves adept at manoeuvering in the nooks and crannies of the law, and discover that two can play at this hate speech game. When they start bringing their complaints, will it be at all relevant that they might be backed by a number of people who agree with them and like to smash and burn things when upset? Can we honestly say that such considerations did not factor in to the Levant case in any way, shape or form?

Imagine that all this should come to pass, and that you are a member of one of Canada's vulnerable groups. Now that the devil has turned around on you in spite of everything, it still may not be too late to try and beat him down in the court of public opinion. So what if the devil tries to silence you, to prevent that debate using the very laws you so lately supported? Surely, you say, those laws could not be used by fascists against anti-fascists. After all, Nazism is an ideology, and our hate speech laws are not there to prevent criticism of an ideology. They exist to prevent hateful messages about certain identifiable groups, none of which has any uniform political identity in and of itself. What legal basis would there be for these supposed complaints? Our denunciations of the fascists would be legitimate political speech, not hate speech. The legislation governing these matters is sufficiently narrowly worded; the Supreme Court even said so in Taylor. The legal test for defining prohibited speech is very precise, so the Court tells us. If the fascists try to ensnare us in our own nets, they will not get very far, since our speech is perfectly legal and theirs is not. If anything, they would have to beware us filing counter-complaints against them.

At that point, you might take a look at the jurisprudence, and discover that the legislation is not so narrowly worded as you might think, and the legal test is not really as precise as you would like. One's conception of 'hatred and contempt' or the Supreme Court's definition thereof - "unusually strong and deep-felt emotions of detestation, calumny and vilification" - could apply to a whole range of works. People who have been caught in these snares include not just Levant and Mark Steyn, but a magazine that put a picture of the god Shiva on its cover, or someone who drew a cartoon of two male stick figures holding hands to discourage homosexuality. You would discover from reading the case law that it really doesn't take much to get caught by the definitions the courts have worked out. Furthermore, you would find that truth is no defence to a complaint and intent is irrelevant, that anyone in the country has standing to complain, and there is little or no procedural justice. You would have no right to an attorney except whatever you could pay for yourself, your accusers would be able to free-ride, and even if you were to win the case you would get back nothing of what you spend.

Having taken this chilling look into the workings of the least attractive parts of our justice system, you might console yourself with the thought that surely the Commissions (as well as the general public) will notice the sheer absurdity of Nazis bringing hate speech complaints and not allow it. You will be able to defend yourself, to impugn the motives of your accusers, to bring their background to light. Extremists have tried filing complaints in the past, and the Commission has dismissed them without much hassle. Andrew Guille, for example, filed against an anti-racism website for reprinting hateful material, and the Commission was shrewd enough to notice that his sister had been previously charged under s. 13, and that he was known to spend time with white supremacists, and therefore declined to follow up on the charges. Guille's complaint was denied for the very reason that the Commission suspected him of racist tendencies.

As Aryeh Neier points out, however, fascists have always been very good at manipulating the optics of a situation, at exploiting public perception to help their cause. What if, in this climate of economic chaos and general bitterness, they were able to persuade some patsies to bring the complaints for them, people from groups that are designated as protected by the Canadian Human Rights Act? Is it really so far-fetched to think that the fascists could work in conjunction with some members of a visible minority? After all, every community has its fringe elements, and even the Klu Klux Klan counted at least one Jewish person in its ranks at one time. If these patsies come forward to accuse you, and you cry 'fascist!' at an African-Canadian, or an Iranian-Canadian, or even a Jewish Canadian, then just listen to how quickly and how loudly they cry "retaliation!" and file another complaint against you, thereby doubling your liability.

Imagine, then, what you will do when the complaints start rolling in. You there, professor, with your book about the Russian empire's pogroms of last century? Why, that's nothing but a transparent attempt to stir up hatred and contempt against the good, peace-loving members of our Ukrainian-Canadian community. This article, sir, about savagery in the Gaza strip? Outright criminal, if you ask me, for trying to expose Palestinian-Canadians to calumny and vilification! And this report about the fraught relationship between Jews and the black population in Toronto? You must be joking, you anti-Jamaican racists, you. Off to the tribunal with you, and remember - it matters not a whit that every word you wrote is true, or that your intentions were good and you meant no one any offense. To a tribunal, go, and we will see you five years and several hundred thousand dollars down the road. And just try and keep up your activism while you are dealing with this costly and draining legal battle.

The late Doug Collins, found liable of publishing hate literature by the BC Human Rights Tribunal in 1999, never considered himself a holocaust denier. He had no doubt, he would write, that "hundreds of thousands" of Jews perished in German camps. This is, of course, holocaust denial in the most obvious sense, but one has only to read his articles to see how easily the tables could be turned. What about the millions of Germans slaughtered by the invading Red Army, he would write, and what about the millions of their women who were raped? Do we not care about them at all? The official accounts of the holocaust, according to Collins, are nothing more than a campaign to defame the German community. Using this line of argument, why could someone not bring a complaint against the publisher of a book like Hitler's Willing Executioners, which details the complicity of ordinary Germans in the holocaust? Would this be so different from the Maclean's case, where the magazine has been called to account for publishing an excerpt of Mark Steyn's book America Alone? That excerpt did not deal with Canadian Muslims any more than a book about the holocaust deals with German-Canadians, and yet the complaint has been accepted in both the BC and federal Tribunals.

When journalists are targeted for addressing controversial issues, when outlets of the national news media are brought before these commissions, is there any telling where it will stop? Why not include comedians, whose work by its very nature often involves treading the line between what is obscene and what is socially acceptable? What about novelists who include outspokenly bigoted characters in their books? What about children's television programs, with their direct appeal to impressionable young minds? Intent is not relevant, remember, and anything that comes out of a fictional character's mouth could be just as wounding as something one reads in the newspaper. The complaints themselves do not require much in the way of manpower or investment, since, as recent history has shown, one person can bring charge after charge, getting the wheels in motion, and then move on to the next case. All that is really required is a sympathetic member at the Commission, a good deal of public complacency and a large and dedicated organization working behind the scenes.

In this hypothetical situation, I have made two assertions that may seem contradictory. First, that in the event of a crisis, hate speech complaints would not be effective at combating a growing and confident fascist movement because of the legal process' lethargic pace and emphasis on formalities. Second, that a campaign of complaints against journalists and academics could be successful despite these procedural drawbacks. The reason the strategy would be less effective against fascists than against legitimate commentators is because the former operate in shadows while the latter have high public profile and fixed addresses. Internet posters can take advantage of anonymity, post under pseudonyms, use public computers. Anyone who has read about the anti-terrorism efforts of law enforcement knows just how difficult it can be to monitor the internet. The majority of s.13 hearings have dealt with fringe websites and their operators, both of which can be somewhat nebulous. But even if a website is shut down, there is really nothing to stop someone from setting up another on a different domain in a matter of hours. With large newspapers, magazines and television stations, however, one judgment can have a chilling effect over the entire industry. Editors can become wary of exposure to legal action and refuse to print anything controversial, and writers will soon learn the drill.

Richard Warman, the lawyer who previously worked for the federal Commission but now is the most frequent complainant before it, honestly believes he is doing the best he can to further the cause of anti-racism. He calls his strategy "maximum disruption" - he tries to obstruct, combat, and punish racists using the tools the government has given him. But the rub of this whole business is that those tools could be picked up by anyone, and employed against the very people they are meant to protect. If those who warn of a Neo-Nazi resurgence are right, and the fascists manage to grow more numerous and sure of themselves, is there any reason to expect they will not eventually learn how to use these very tools? If people who think like Ernst Zundel and James Keegstra are able to bring actions against writers and politicians with impunity, that will be a real campaign of "maximum disruption." When the fascists are making lists of those they want to harass, will activists stand up to face them, or will they tone down what they say and write to avoid catching anyone's eye?

Those who make 'slippery slope' arguments are often derided as reactionary and alarmist. But to study the progress of these hate speech laws and their application over the last twenty years is to encounter a textbook definition of a slippery slope. Remorselessly and predictably, the Commissions have moved from extremist websites, to small newsletters and private papers, to major dailies and political magazines, and finally to one of the largest and most mainstream of the country's media companies. In 1987, the Commission investigated John Ross Taylor, a man who had set up an automatic telephone propaganda system, with a toll-free number that gave people anti-Jewish conspiracy theories. In 2006, the Alberta Commission accepted a complaint about a cartoon. If we have gone from obvious Nazi propaganda to cartoons in only nineteen years, where will we be in another nineteen?

"D'you really think you could stand upright in the winds that would blow then?" asked Thomas More. My hypothetical scenario is just that, and I do not consider it a very likely one. But supporters of free speech are not the ones who most often bring up the spectre of Nazism; usually that subject is brought up by pro-censorship groups to silence our arguments. If we are to toss around the idea of a fascist resurgence in this country, it is just as well to consider how our laws would respond to such an event. Those who support hate speech laws are neglecting Aryeh Neier's warnings that the vulnerable groups in society are the ones most in need of untrammeled free speech. If you disagree with Ezra Levant, for example, that the Jewish community is presently in danger from elements of radical Islam, ask yourself this: By silencing him and those like him now, am I eroding everyone's right to speak out? Am I certain that, should I ever perceive a clear and present danger to my community, I will be able to ring the alarm when the time comes? Knowing what you know about how hate speech laws work, and just how broad their application can be, would you be willing to bet a hundred thousand dollars that you will have the freedom to speak out in future? How about a million dollars? How about the future of a people in this country - for, if we are honest with ourselves, we must realize that this is what will really be on the table. Would you make that bet? Having seen what happens to those who want to raise an alarm in this country, I would not like the odds, and I hope that makes you, reader, as nervous as it makes me.